JPA 2000-05 Use of Fitness for Duty Provisions

330/4/1028

JURISDICTIONAL POLICY ADVICE NO. 2000/05

APPLICATION OF “FITNESS FOR DUTY” PROVISIONS

Background

1. Many awards and agreements with coverage of Commonwealth employment, as well as some statutory arrangements, contain long standing provisions under which employees may be required to attend for medical examination to assess their fitness for duty. The provisions serve a variety of purposes but are primarily a management tool for the employer. They ensure that appropriate information is available upon which to base decisions on employment arrangements for employees who may be wholly or partly unfit for duty, for whatever reason.

2. Determining authorities have indicated that it would be useful to have policy advice on the extent to which information obtained in the course of a fitness for duty examination can be used for a purpose related to the management of a compensation claim. More specifically, there is a need for advice on the relationship between the employer’s power under these types of provisions and the determining authority’s power to require an employee to undergo a medical examination under section 57 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

Policy Advice

3. Throughout this advice, references to “use” of information should be read as including both use and disclosure of that information. In all cases, employers will be bound either by the conditions of their licence under the SRC Act or by the relevant Information Privacy Principles (IPPs) under the Privacy Act 1988. A copy of the Information Privacy Principles is attached, and determining authorities should take particular note of IPPs 2, 9, 10 (limits on use of information) and 11 (limits on disclosure of information).

4. The basic principle to be followed is that information should only be used for the purpose for which it was collected, unless the person to whom it refers has given permission for it to be used for another purpose.

5. If information regarding an employee’s medical condition is collected for an employment-related purpose (for example, to record absences from work or to assess their fitness for duty) it should not, in principle, be used for a compensation-related purpose (for example, to support a decision to continue or cease liability). With the employee’s written permission, however, the holder of the information may grant access.

6. Determining authorities which are also employing authorities may wish to consider seeking permission to grant access as a matter of course when they refer employees for fitness for duty examination.

7. Where the employee’s permission has not been obtained, the circumstances of a particular case may be such that the IPPs would allow a workers’ compensation determining authority to use information which would not normally be made available by an employer. The nature of a compensation claim may suggest that there is a particular need for access to fitness for duty information. By way of example only, cases where use might be permitted, depending on specific circumstances, would include:

i) where Comcare (but not a licensed authority or licensed corporation) may have cause to require specific documents or information relevant to a claim to be provided under s71 of the SRC Act; or

ii) where there is reasonable suspicion that a claim may have been lodged with fraudulent intent.

8. When a determining authority requires independent assessment of a claimant’s medical condition, the normal course would be to use the provisions of section 57 of the SRC Act to refer the claimant for examination. It is particularly noted that it is not open to determining authorities to use “fitness for duty” or similar employment conditions as an alternative to SRC Act provisions which impose a minimum interval between times when an employee can be referred for examination in relation to their compensation claim.

Separation of Roles

9. In order for access to employment-related information to be adequately controlled, it is recommended that determining authorities should review their arrangements for separation of workers’ compensation management roles from management of terms and conditions of employment. Where appropriate “arm’s length” arrangements are not currently in place – including in regional or district offices – it may be necessary to consider changes in administrative procedures, structure or lines of control to ensure that the principles outlined above are observed.

10. In particular, it is recommended that determining authorities review any written workers’ compensation, fitness for duty or early intervention procedures. This review should ensure that they do not conflict with the principles regarding use of information for the purpose for which it was collected.

11. Enquiries about the application of this policy should be directed to the Policy & Co-ordination Group on 1300366979.

Regulatory Services Division

Comcare

27 June 2000

Privacy Act 1988

Section 14 – Information Privacy Principles

The Information Privacy Principles are as follows:

Information Privacy Principles

Principle 1

Manner and purpose of collection of personal information

1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:

(a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and

(b) the collection of the information is necessary for or directly related to that purpose.

2. Personal information shall not be collected by a collector by unlawful or unfair means.

Principle 2

Solicitation of personal information from individual concerned

Where:

(a) a collector collects personal information for inclusion in a record or in a generally available publication; and

(b) the information is solicited by the collector from the individual concerned;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of:

(d) if the collection of the information is authorised or required by or under law—the fact that the collection of the information is so authorised or required; and

(e) any person to whom, or any body or agency to which, it is the collector’s usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first-mentioned person, body or agency to pass on that information.

Principle 3

Solicitation of personal information generally

Where:

(a) a collector collects personal information for inclusion in a record or in a generally available publication; and

(b) the information is solicited by the collector;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:

(d) the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Principle 4

Storage and security of personal information

A record-keeper who has possession or control of a record that contains personal information shall ensure:

(a) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and

(b) that if it is necessary for the record to be given to a person in connection with the provision of a service to the recordkeeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.

Principle 5

Information relating to records kept by record-keeper

1. A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

(a) whether the record-keeper has possession or control of any records that contain personal information; and

(b) if the record-keeper has possession or control of a record that contains such information:

(i) the nature of that information;

(ii) the main purposes for which that information is used; and

(iii) the steps that the person should take if the person wishes to obtain access to the record.

2. A record-keeper is not required under clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

3. A record-keeper shall maintain a record setting out:

(a) the nature of the records of personal information kept by or on behalf of the record-keeper;

(b) the purpose for which each type of record is kept;

(d) the period for which each type of record is kept;

(e) the persons who are entitled to have access to personal information contained in the records and the conditions under which they are entitled to have that access; and

(f) the steps that should be taken by persons wishing to obtain access to that information.

4. A record-keeper shall:

(a) make the record maintained under clause 3 of this Principle available for inspection by members of the public; and

(b) give the Commissioner, in the month of June in each year, a copy of the record so maintained.

Principle 6

Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

Principle 7

Alteration of records containing personal information

1. A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:

(a) is accurate; and

(b) is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.

2. The obligation imposed on a record-keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.

3. Where:

(a) the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and

(b) no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

Principle 8

Record-keeper to check accuracy etc. of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

Principle 9

Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

Principle 10

Limits on use of personal information

1. A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:

(a) the individual concerned has consented to use of the information for that other purpose;

(b) the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;

(d) use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or

(e) the purpose for which the information is used is directly related to the purpose for which the information was obtained.

2. Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record-keeper shall include in the record containing that information a note of that use.

Principle 11

Limits on disclosure of personal information

1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

(b) the individual concerned has consented to the disclosure;

(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

(d) the disclosure is required or authorised by or under law; or

(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.